New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2007-042-511, Claim No. 112959, Motion No. M-72680


Synopsis


This matter comes before the Court on defendant’s pre-answer motion to dismiss the claim, pursuant to CPLR 3211, for lack of subject matter jurisdiction and/or lack of personal jurisdiction over the defendant on the grounds that the claim was untimely served pursuant to Court of Claims Act Section 10 (3). Defendant’s motion is granted.

Case Information

UID:
2007-042-511
Claimant(s):
MARY ANN GRAHAM AND MICHAEL GRAHAM
Claimant short name:
GRAHAM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112959
Motion number(s):
M-72680
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
WILLIAM M. BORRILL, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 31, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on defendant’s pre-answer motion to dismiss the claim, pursuant to CPLR Rule 3211, for lack of subject matter jurisdiction and/or lack of personal jurisdiction over the defendant on the grounds that the claim was untimely served pursuant to Court of Claims Act § 10 (3). The following papers were considered by the court:
1. Notice of Motion, filed December 15, 2006
2. Affirmation of G. Lawrence Dillon, Esq., dated December 15, 2006
3. Exhibits A - B, annexed to the moving papers
4. Opposition affidavit of Mary Ann Graham and Michael Graham, sworn to February 9, 2007
5. Exhibits A - B, annexed to Graham affidavit
6. Amended affidavit of Mary Ann Graham and Michael Graham, sworn to March 5, 2007
7. Exhibits annexed to amended affidavit
8. Reply affirmation of G. Lawrence Dillon, Esq., dated March 22, 2007
___________________________________________


This matter comes before the court on defendant’s pre-answer motion to dismiss the claim, pursuant to CPLR Rule 3211, for lack of subject matter jurisdiction and/or lack of personal jurisdiction over the defendant on the grounds that the claim was untimely served pursuant to Court of Claims Act § 10 (3).

In the underlying claim, claimants seek to recover damages arising out of injuries allegedly sustained by claimant Mary Ann Graham in a bicycle accident which occurred on November 6, 2005.

A Notice of Intention to File a Claim was served upon the Attorney General’s Office on or about February 8, 2006. The Claim was personally served on the Attorney General’s Utica Regional Office on November 24, 2006.

It is the contention of the Attorney General, on behalf of defendant, that Court of Claims Act § 10 (3) required claimants, who chose to initially proceed by service of a Notice of Intention to File a Claim, to serve said Notice within 90 days, to wit: by February 3, 2006. Defendant argues that claimants failed to meet that deadline, having not served the Notice of Intention until February 8, 2006.

Defendant contends further that it is immune from liability pursuant to General Obligations Law § 9-103.

Lastly, defendant argues that the “nebulous geographic description” of the incident site is statutorily inadequate, thus failing to meet the mandates of Court of Claims Act § 11 (b); and, if the incident in fact took place upon property managed by the Canal Corporation (the accident allegedly occurred on a bike path near Lock 20 in the Town of Marcy), the Thruway Authority is a necessary party.

Claimants’ initial opposition to this motion, done without the benefit of a formal cross-motion (or notice of motion of any kind), made “an application under General Municipal Law § 50-e (5) for leave to serve after the statutory period a Notice of Claim for damages against the State of New York, as well as the New York State Canal Authority” (affidavits of Mary Ann Graham and Michael Graham, sworn to February 9, 2007).

This initial submission was followed by an amended affidavit from the claimants - again without the use of a motion - which seeks leave to late file a claim against the State and the Canal Authority pursuant to Court of Claims Act § 10 (6).

Defendant replied to the amended opposition papers, and argues that the relief sought - for leave to file a late claim - required a formal motion, and that an attorney’s affidavit is inadequate to support the requested relief.

LEAVE TO FILE A LATE CLAIM
Turning first to claimants’ informal request for leave to late file a claim, the Uniform Rules for Trial Courts (see 22 NYCRR § 206.9 [a]) clearly intend that applications for leave to late file a claim shall proceed by motion. More importantly, though, Court of Claims Act § 10 (6) explicitly provides that “[t]he application for such permission [to late file a claim] shall be made upon motion . . . .” Claimants failed to make such motion, having sought such relief solely in their opposition to defendant’s motion to dismiss.

Where “the words and meaning of a statute are plain, clear and unambiguous, a court should not resort to analysis of the legislative history”, but should simply “give effect to the plain meanings of the words used” (Van Amerogen v Donnini, 156 AD2d 103, 105-106, 105).


(Konviser v State of New York, 180 Misc 2d 174, 177).


The Court of Claims Act is most specific about the procedure by which application is made for leave to late file a claim. Failure to follow this procedure must necessarily result in denial of the relief:

[w]here no application [for leave to late file] can be made, as at bar, or where no application has been made, as in Calderazzo v State of New York (74 AD2d 954), a late filing cannot be allowed to stand.


(Muscat v State of New York, 103 Misc 2d 589, 592).


The court in Skiptunas v State of New York (UID No. 2000-015-103, Claim No. 102744, Motion No. M-62254, Collins, J.) was presented with defendant’s motion to dismiss the claim. Rather than cross-moving for leave to late file, claimant made the request for leave in an affirmation submitted to oppose defendant’s motion to dismiss. The court denied the request, stating:

claimant’s counsel, in his affirmation in opposition to the instant motion, seeks to invoke the Court’s discretionary authority to permit the late filing of a claim pursuant to Court of Claims Act § 10 (6). The Court declines to address the issue of late claim relief in the absence of a proper application therefor (see, Court of Claims Act § 10 (6); 22 NYCRR § § 206.8 [a], 206.9 [a]; Sciarabba v State of New York, 152 AD2d 229; O’Connell Assocs. v State of New York, 176 Misc 2d 697; Hop Wah v State of New York, 137 Misc 2d 751).


Claimants’ informal request for leave to file a late claim is denied for their failure to comply with the provisions of Court of Claims Act § 10 (6).

DEFENDANT’S PRE-ANSWER MOTION TO DISMISS CLAIM
As noted earlier, defendant seeks an order dismissing the claim pursuant to CPLR §§ 3211 (a) (7) and (8) on the grounds that the court is without personal jurisdiction and/or subject matter jurisdiction over the defendant for claimants’ failure to timely commence the action. Defense counsel, in the supporting affirmation, but not in the notice of motion, also seeks summary judgment. Inasmuch as the notice of motion does not seek this relief, the court, in the exercise of its discretion, declines to also treat the motion as one for summary judgment (CPLR Rule 3212), rather than a CPLR Rule 3211 motion to dismiss.

According to defense counsel’s affirmation, claimant Mary Ann Graham was allegedly injured in a bicycling accident which occurred on a public path adjacent to the New York State Barge Canal in Marcy, New York. The incident is alleged to have occurred on November 6, 2005. As noted previously, the Attorney General states that a Notice of Intention to File Claim was served on the Attorney General on or about February 8, 2006. The Claim was served on the Attorney General on November 24, 2006. It is the defendant’s position that this action is time-barred, as the Notice of Intention to File Claim was not served within the statutory 90-day time period; thus the claimants had no extension period, pursuant to Court of Claims Act § 10 (3), within which to serve a Claim.

Court of Claims Act § 10 (3) requires that a claim for personal injuries shall be filed and served upon the Attorney General “within ninety days after the accrual of such claim” unless within that same time period, claimant has served upon the Attorney General a notice of intention to file a claim - in which case, the claim may be filed and served upon the Attorney General within two years after accrual of the claim.

In the present case, the service and filing of the Claim on November 24, 2006 - more than one year after the claim arose - is timely only if the Notice of Intention to File Claim was served upon the Attorney General by February 6, 2006.[1] However, even the claimants acknowledge that the Notice of Intention to File Claim was not served until February 8, 2006, days after expiration of the statutory deadline.

Claimants’ action is time-barred and defendant’s pre-answer motion to dismiss the claim is granted. Since this ruling is dispositive of the case, I need not reach other issues raised by the parties.



May 31, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1].Ninety days from November 6, 2005 would be February 4, 2006. However, February 4, 2006 fell on a Saturday. Pursuant to General Construction Law Section 20, the time limitation would have been extended to include Monday, February 6, 2006.